Paul v. Rokosz

HP 6158/06

Joseph Capella, J.

In April 2006, the petitioner commenced the instant Housing Part proceeding ("HP proceeding") against the respondent-owners ("owners") seeking to correct the following alleged violations: (1) insufficient height of duct work located at rear extension of building, (2) excess noise from HVAC system located at ground floor restaurant, (3) leak at heat riser with thick, dark liquid running down same, and (4) water leak in the bathroom.[FN1] A trial was held on July 27, (digital recorder @ 2:35:09 - 5:00:00), September 7, (digital recorder 2:30:00 - 3:57:25), September 13, (digital recorder @ 10:24:52 - 5:05:08), and September 19, 2006, (digital recorder @ 2:32:08 - 4:21:25), and upon completion of same, the court makes the following findings and conclusions.[FN2]

The Housing Part is a specialized part within the Housing Court that hears in a single forum all disputes involving the enforcement of state and local housing standards for health and safety. (NY City Civ. Ct. Act § 110; see also NYC Housing Maintenance Code [Admin. Code] § 27-2115(h), (i); Parkchester v. Parkchester, 180 Misc. 2d 548, 691 N.Y.S.2d 269 [Civ. Ct., Bronx Cty. 1999].) Proceedings brought in this forum are referred to as "HP proceedings," and the laws to be enforced primarily include the Housing Maintenance Code, but may also include the Multiple Dwelling Law, the Building Code and the Health Code. Although noise is a fact of life in the City of New York, there are instances in which a specific source of noise becomes [*2]excessive.

The two sections of the New York City Administrative Code that deal with noise violations are the Noise Control Code, (NYC Administrative Code § 24-202), and the Building Code (NYC Administrative Code § 27-770). The general definition of unreasonable noise under the Noise Control Code is any excessive or unusually loud sound that disturbs the peace, comfort or repose of a reasonable person of normal sensitivities or injures, or endangers the health or safety of a reasonable person of normal sensitivities, or which causes injury to plant or animal life, or damage to property or business. (NYC Administrative Code § 24-203(ccc).) The Noise Control Code's general prohibition section provides that "[n]o person shall make, continue or cause or permit to be made or continued any unreasonable noise, except that this section shall not apply to any sound from any source where the decibel level of such sound is within the limits prescribed by another section of this title and where there is compliance with all other applicable requirements of law with respect to such sound." (NYC Administrative Code § 24-218.) According to the Noise Control Code, no person shall operate or permit to be operated a circulation device in such a manner as to create a sound level in excess of 45 db(A) when measured inside the dwelling unit affected in a line with the window nearest the exterior face of such circulation device - the measurement shall be taken with the window fully open at a point three feet from the open portion of the window. (NYC Administrative Code § 24-237.)

In addition to the Noise Control Code, the Building Code also sets maximum permissible sound levels as measured by decibel-level testing in eight octave bands within a residential unit. (NYC Administrative Code § 27-770.) According to the Building Code, mechanical equipment in a building in any occupancy group, when located outside of the building in a yard or court or on a roof, shall be subject to the noise output limitations set forth in table 12-5 as measured within the dwelling. (NYC Administrative Code § 27-770(a).) Table 12-5 provides as follows:

Noise Output Limitations for Exterior Mechanical Equipment Maximum Sound Pressure Level (Not to be exceeded in any octave bands)

As is clearly evident, these statutes are very specific in terms of what noise sources are covered and what constitutes unreasonable noise. At trial, the burden is on the petitioner to establish that the alleged noise constitutes a violation. The petitioner resides in an "L" shaped loft located on the fourth floor of the subject building. There is a restaurant on the first floor, and the roof of this restaurant can be seen from the petitioner's window. The restaurant has a large air-conditioning unit and an exhaust fan duct, [*3]which runs up the side of the building 15 inches from one of the petitioner's windows. At trial, the petitioner testified that the air-conditioning unit is on between 10:00 a.m. and 10:00 p.m., and sometimes later. The unit stops mid afternoon at about 3:30 p.m. for about an hour, and runs six days a week. From her apartment, the petitioner can hear a low rumbling frequency that "permeates everything." She further testified that she works from her apartment and wears earphones all day because the "noise is totally permeating like horrible poison." On March 30, 2006, the NYC Department of Environmental Protection ("DEP") issued violation number 177629Z for "the operation of circulation device exceeding the allowable sound level in violation of sect 24-137 of the noise code. Reading were (sic) taken 3 ft. from an open window inside [petitioner's] apt. total (sic) 52dba ambient 46dba source 51dba. Found 1 exhaust system approximately 25 feet from [petitioner's] apartment. All parties were informed of the noise code and violation issued."

The petitioner's testimony regarding the restaurant's hours of operation were confirmed by the owner of the restaurant, Joseph D'Costa, who also testified that the DEP inspector told him to reduce the noise. Mr. D'Costa testified that he "doesn't know anything about air conditioning or duct work," but in April 2006, he hired a "hood company" to address same. According to Mr. D'Costa, the "hood company" charged him $550.00 to "tighten some loose parts and changed some belts." He further testified that there "was still a problem after the hood company left." In August 2006, he hired a different company, Mega, to do additional work to stop the vibrations emanating from the duct work. According to Mr. D'Costa, the "machine still shook but not the duct." Mr. D'Costa also testified that he did not inspect that portion of the duct work which runs along the side of the building and past the petitioner's window. There was no testimony from any of the contractors who worked on the duct system. One of the owners, Shrage Rokosz, testified that he observed the aforementioned work taking place on the restaurant's roof, and on September 1, 2006, he spoke with the petitioner regarding same and she told him that there was no noise. According to the petitioner, however, after this conversation took place, she went to the wall near the duct and still felt vibrations. On cross examination, Mr. Rokosz testified that at no time did he "hire anyone to check for noise," even after hearing the petitioner testify on September 13, 2006, that her statement to him on September 1, 2006, regarding no noise was in error.

A DEP inspector, Houssein Hajar, testified that he was at the subject building on July 12, 2006, for about half an hour to take noise level readings. Although he did not issue the earlier DEP noise violation, he reviewed the noise violation report and confirmed that the earlier noise readings taken by a different inspector warranted a noise violation. The noise meter readings taken by him on July 12, 2006, however, did not warrant the issuance of a noise violation. According to Mr. Hajar, he told the restaurant owner that there was no noise violation that day, but recommended to the owner that the air-conditioning unit be lubricated. Mr. Hajar further testified that the ambient noise on July 12, 2006, was 53 db(A), and the greater the ambient noise the less likelihood a violation is found. He was not in a position to control the ambient noise, and could not recall whether the air-conditioning unit was on during his inspection. According to Mr. Hajar, if the unit was on, it would have increased the ambient noise. Mr. Hajar described the noise he heard as a low pitch, which is not measured by the equipment he uses.

An expert on sound measurement, Alan Fierstein, testified that he went to the petitioner's apartment on July 14, 2006, and immediately heard noise even with the windows closed. He [*4]described it as a low frequency rumble near the exterior exhaust duct. He climbed out onto the fire escape to the rear set back and observed three air conditioners, two small ones and one large one, a kitchen exhaust fan and the duct work. According to Mr. Fierstein, the duct work vibrates strongly along its length, which is bolted into the side of the building. The vibrations are felt on the bolted brackets. The exhaust fan is old and noisy, and the air conditioners were producing a majority of the ambient noise. He met an agent for the landlord and asked the agent to have the restaurant turn off the large air conditioner. This would lower the ambient noise and thereby make the exhaust fan noise more discernable. Up until this point, the air-conditioning unit had been cycling on and off. According to Mr. Fierstein, after waiting some 40 minutes with no change to the air conditioner, he realized that the thermostat for the unit had been turned down in order to impede his testing. He then proceeded to momentarily shut off the kitchen exhaust fan, and took noise measurements inside the apartment using a Bruel and Kjaer 2260 Sound Analyzer, calibrated by a Bruel and Kjaer Model 4230 Sound Source. He did the same thing with the exhaust fan on. The instrument was set up three feet inside a fully opened middle window.

According to Mr. Fierstein, the most common type of sound measurement is the db(A) decibels, which is an overall measurement of all frequencies that tends to ignore low frequency sounds. This sound measurement only requires a simple sound level meter as used by the DEP inspectors. The sound analyzer used by Mr. Fierstein is not only able to measure this sound, but it can also measure sound on the octave band. Mr. Fierstein was also able to eliminate the effect of the ambient noise by using decibel subtraction. According to Mr. Fierstein, he obtained a noise level reading of 53 db(A) for the exhaust fan, which exceeds the 45 db(A) permitted under the Noise Control Code. (NYC Administrative Code § 24-237.) The octave band readings exceeded the Building Code, (NYC Administrative Code § 27-770(a)), as follows:

The owners have not done anything to address the noise, nor did they hire an expert to investigate same - they relied exclusively upon the work done by Mr. D'Costa. However, Mr. D'Costa testified that there was still a noise problem as of July 2006, and there was no testimony from any of the companies he hired to address this issue. In addition, Mr. D'Costa testified that the "machine still shook" even after the August 2006 repairs, and that he did not inspect that portion of the duct work which runs along the side of the building and past the petitioner's window. Although the DEP did not issue a noise violation on July 12, 2006, it did issue a violation on March 30, 2006. Both Mr. Hajar, the DEP inspector who conducted the inspection on July 12, 2006, and Mr. Fierstein testified that the greater the ambient noise the less likelihood a noise violation will be issued. Mr. Hajar could not recall whether the roof top air conditioning [*5]unit was on during his inspection. Unlike the DEP inspectors, Mr. Fierstein used a complex spectrum analyzer that took noise measurements on the octave band, and he was able to control the ambient noise. In addition, Mr. Fierstein's sound measurements are the most recent - they took place two days after the DEP inspection of July 12, 2006.

Based on the aforementioned, the court finds that a violation of Noise Control Code (NYC Administrative Code § 24-237) and the Building Code (NYC Administrative Code § 27-770(a)) does exist, and deems same to be two "B" violations. At trial the owners agreed to correct the leak at heat riser and in the bathroom, which the court shall also deem to be two "B" violations. The petitioner did not introduce evidence to establish that the height of duct work located at rear extension of the subject building is insufficient; therefore, this alleged violation is dismissed. The owners are ordered to correct the aforementioned four "B" violations within 30 days of receipt of this decision/order with notice of entry. Upon default, this proceeding may be restored for appropriate relief, including civil penalties and/or contempt. The petitioner is directed to serve a copy of this decision with notice of entry by first class mail on/before November 15, 2006, and the parties are directed to pick-up their exhibits in Part B, room 526, on/before November 30, 2006. This constitutes the decision and order of this court, copies of which are being mailed by the Court to the parties' attorneys.

____10/31/06___/S/___

Date Judge, Housing Court